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Tag Archives: Freedom of Expression

If you are interested in law and society, which you should, if you are part of the human society!

If you are interested in law and politics, rule of law v. rule by law, you might like this piece on Ghosts & the Law, by my scholarly mentor and cheerleader. A very notable Professor of Law, scholarly activist, internationalist and indefatigable human rights activist, Professor J. Oloka-Onyango.

In his Inaugural Lecture, interestingly, coming toward the end of his academic teaching career on November 12, 2015, as Professor of Law at Makerere University, Oloka-Onyango explores once again, the ‘Ghost’ of ex parte Matovu, a very domineering and controversial casein Uganda’s Constitutional legal History, a living ghost, still haunting the present.

It is noted that Uganda v. Commissioner of Prisons, ex parte Michael Matovu (1966) fortified the notion of Political Question Doctrine (PQD) in Uganda’s Constitutional Law, by privileging unfettered Executive power over constitutional governance.

Yet again, Oloka-Onyango, who is not afraid of ghosts revisits the overdue constitutional and judicial obligation to expunge the Bad ghost of ex parte Matovu and PQD, by utilizing its ‘twin Good ghost’, Public Interest Litigation (PIL).

While PIL is relatively new in Uganda’s constitutional law, it has the potential of advocating for, and protecting the fundamental human rights and freedoms explicitly guaranteed to all persons, since the enactment of the 1995 Constitution of the Republic of Uganda. This time, the judiciary can rescue its reputation, by not shying away from taking on its mandate in litigations involving Economic, Social and Cultural Rights.

Below is an excerpt of the paper…

"So what can be said about all these ghosts that have come to us via Literature, drama and the more technologically-modern mediums, TV, radio and lm? The rst point is that they all represent some human quality: resilience, anger, torment or simple good manners. In other words, these are traits which are largely human even if they may also be attributed to the gods and spirits, and in so doing ampli ed or exaggerated. Secondly, ghosts are universal in scope, although local in application. A Nigerian incubus will not necessarily have the same traits as a troll born in Sweden. Lastly, one ignores the message that a ghost brings to one’s peril. Irrespective of the content of the message, it needs to be properly digested and applied wisely. These are all lessons that are relevant to the theory and the practice of the Law. But before turning to the Law, let us look at the arena of Philosophy."
And, if you want to read the entire paper, here is the link.
JOO INAUGURAL LECTURE Final Version, Oct 30, 2015

It is a given that all humans live in pursuit of happiness! We all want to be happy, with ourselves, our loved ones and our families. We want to enjoy life, and always wish the best for ourselves. None of us wishes to be bonded to pain, sadness or misery.

Our pursuit of happiness manifests itself in different forms. Self-help books, filled with “lessons on becoming/staying happy”. Shrinks in form of psychologists, psychiatrists, religious prophetesses and prophets, guidance counselors and friends, all remind us how worthy of happiness we are. Lest we forget the “Happy Singer” Pharrell Williams, whose “happy” has ‘infected’ every corner of the world, including places amidst chaos and war. Fitness and body weight loss programs restore and build our happiness, as are TV, video and radio and plenty of other entertainment disposable to make us happy. Implicitly, Happiness is the ultimate measure of personal freedom; sadness the worst form of human living, which should be avoided at all costs!

Perhaps we are all wrong! That sadness is after all not fatal, not miserable and not undesirable. Perhaps there is freedom in suffering? Freedom to liberate, to take time off the world’s absurdities into oneself. Time to reflect and rejuvenate oneself, time to ponder over one’s failures, disappointments and hurtful moments, then recreate success, satisfaction, love and happiness. Through suffering, we might find the strength to claim our space in an unfamiliar, unjust and uninviting world. We might stop being voiceless by finding our voice, or among others concerned about their plight. We might also find the creativity to rebuild our lives and reclaim economic, political and social security for ourselves and loved ones. We might create our bubble of happiness, false or real, longterm or short-lived.

Here, I am thinking of Gays and Lesbians, very often living as outlaws in many societies, but are able to find avenues for self-expression. Transforming alienation, antagonism and ostracism they face into spaces to display of themselves to the ‘unsuspecting’ public through art, spoken word, activism, performance, dressing and festivities. Through disobedience they are transforming their suffering into freedom from confinement in the ‘underground’/‘unseen’ world into outer space.

Battered and abused spouses, as well, find freedom in suffering, through silence or disobedience against demands of their abusive spouses. For some, sexual intercourse is the channel for release their suffering at the hands of abusive spouses for a ‘momentary’ moment(s) of enjoyment. Sexual intercourse transpositions them into a world away from their sadness, reconnecting with their inner most desires and blissfulness. Others find freedom in infidelity with ‘lovers’, one-off strangers or sex workers. Married men buy prostitutes to satisfy their sexual infatuation. Overtime, some of the transactions transcend mere sexual encounter, as the sex worker becomes a listening ear and shoulder to cry on about their marital woes, an avenue to release oneself freely, a source of ‘free’ marriage counseling and education in sexual intimacy. Married women also take on lovers or boyfriends for sexual satisfaction, and to feel desired, adored and youthful again.

Even the unemployed find freedom in suffering a financial loss and job insecurity. The mind is released from the daily demands of a work-life to wander off into places of sadness to imagination to creativity. The loss and pain that often comes with unemployment also avails one more time to think, invent, regain the courage to rebuild oneself, and recreate one’s freedom, through a new employment elsewhere, or by creating own employment.

Drug addicts unleash their pain and suffering through drugs, even if its a few minutes of ‘make-believe’ happiness. I have learned that crack cocaine users ultimately become addicted in a search for “that first high”, that can never be attainable again. They just want to relieve that moment of no fear, wild happy feelings and flying high in the cloud.

Ultimately, even in the most suffering comes moments of freedom for all of us. Moments when we would rather not be disturbed by any offers of love, attention or comfort from outside ourselves. When we all resort to the power within us to overcome suffering and define and recreate our freedom on our terms.

Recently during my son’s Tae-Kwon-Do class, I had a conversation with the other Tae-Kwon mom. Only my son and his kid showed up for class. As is usually the case on Friday, most kids/parents take off the day. I loved Friday Tae-Kwon-Do classes because we get full monopoly of the teacher, when only a few of us show up! My son gets to sharpen up more on our skills. Hopefully, I too, can start Tae-Kwon-Do classes next year, Ensh’allah!

N’way, the Tae-Kwon-Do mom has a three-month old brand new baby. Gorgeous! Of course, we wandered into “baby talk”; what else is expected of mommies smitten with new babies! She told me, baby does not latch on the boobie, so she expresses most of the time and put her on the bottle, while still trying to get her some “boobie time”.

Which reminded me of the “New Moms Classes” I attended at the hospital where I had my baby. All we did was hangout in a room with other new mommies, and exchange “joys and nightmares” our new little humans were bringing unto us. It was a great way to get out of the house, expand your social network, while getting useful tips on parenting, child care and new baby deals. Sometimes, we invited each other out to potlucks in our homes or for a group stroll in the park with our babies.

Personally, I got much more than dinner and a stroll in the park. It was my first face to face with babies who could not latch onto boobies, and mothers who honestly need help with breastfeeding their babies. I must admit, hitherto, I had my prejudices toward women who said they had trouble breastfeeding their new ones. I assumed those were “white people problems” or “lazy mothers excuses” or mothers trying to find excuses not to breastfeed their babies. True, I had heard some expectant mothers in my prenatal classes say that they were not planning to breastfeed because they did not want their breasts to sag. Or that their breasts were for their men!

Don’t we all have prejudices, anyway? Many we hate to admit or are not aware of, as my case illustrates! Think about Charlie Hebdo Cartoons, Race in America, Abilities, Disabilities and Satire, which are all heated debates within the global public.

Back to breastfeeding, that was never a concern I personally encountered growing up or as a new mother. I was breastfed, and all of my siblings. Growing up as the youngest girl in my family, all my sisters [except one] had children before me. All breastfeed their children, except my eldest sister, who barely breastfed her first child, as she had to return to college to sit her examinations. I do not recall any any of my sisters complaining about “difficulty breastfeeding” or “baby latching on”, including my sister who had her first child at fifteen. It all appeared simple and natural! When my turn came around as a new mother, at no point did I experience difficult, pain nor baby failing to latch on. In fact my child latched on soon as he was handed to me to breastfeed in the delivery room. He never at anyone time failed to find that boobie, in darkness or sunlight, sleepy or awake, tired or relaxed! He was an “A+ trooper” at breastfeeding!

But not all my new mom friends had the same fortune with their little ones. Some had nipple issues, others complained about babies bitting them or disinterested. My Tae-Kwon-Do mom friend said her daughter latched on early postpartum, subsequently sliding off and showing disinterest in the breast. Not a fan of substituting with formula, she is expressing her milk and bottle-feeding, while continuing to keep her interested in “boobie time”. Bless her heart!

Similarly, if you grow up around people who look like you, it could be hard not to take life for granted. If every child in you know of found the breast even in the dark and breasted till s/he weaned self off, learned to sit, crawl, walk and talk and hit all other development milestones on time, walked on two legs, had no stutter, eat, played and slept just fine, that is your truth. It is easy to take those abilities for granted, without recognizing, as I increasingly learn, that many kids are born with autism, multiple sclerosis, sickle cell Anaemia, epilepsy, and many other developmental delays. If these kids are raised outside “mainstream society”, denied a chance into formal schooling, or segregated into own classrooms, it is easy not to acknowledge their existence or special needs. Though, my experience working in Special Needs classrooms has opened me to the advantages of providing “specialized spaces”, where they can freely express themselves without the encumbrances imposed by ‘normal’ societal expectations, demands and humiliation!

And, bless the hearts of those who do not see race as a problem in America! While there are outright racists, some are simply blind to their racist actions, reactions, thoughts or tendencies, until it hits close to heart. Recent wave of police killing of unarmed black men have further highlighted the divide in understanding and acknowledging racism in America. There is a section of folks who argue that such incidences would not have happened, if #MichaelBrown did not rob a convenience store or confront the police, #EricGarner was not illegally selling cigarettes on the streets or that 12-year old TamirRice was not wielding a toy gun in a public park.

Yet, Eric Garner was not resisting arrest when the NYPD chocked him to death on July 17, 2014 on Staten Island. Let’s talk about 17-year old ’skitties-weilding’ #TrayvonMartin, shot and killed by Michael Zimmerman or #JordanDavis killed by Michael Dunn over loud rap music, both killers self-appointed vigilantes exercising their Florida state-given right to #standyourground.

Haven’t we heard white folks bearing arms openly, then arguing with the police, walk away without being hit to the grown, detained or shot at? While, #MarcusJeterdid not resist arrest, when New Jersey cops swerved into his SUV, causing him to hit his head on the steering wheel, assaulted him physically and verbally, lied about him trying to steal their gun, then turned around to charge him with eluding police, resisting arrest and aggravated assault on an officer. No!

So, No!#Blacklivesdontmatter! Nor does Satire speak one universal language! Manufacturing concern aboutthe wellbeing of the most vulnerable, marginalized and underrepresented in our society, from everybody will always be an uphill battle and insurmountable, because we as a people will never be offended by the same thing at the same time. Hate speech is as relative as freedom of expression or freedom of speech. Not everyone is or will ever beCharlieHebdo orAmedyCoulibalyat the same time. In fact, some will never be either, because both feet are not in the same place at the same time. So, whereas the Swedes interviewed on the streets for their reaction to Charlie Hebdo cartoons may excuse the caricature of other people’s eminent personalities as part of life’s opportunities to laugh off, I suspect they may not LOL [Laugh Out Loud] when the subject of caricature is their mother, father, other loved one of themselves.

Perhaps if we acknowledged our prejudices, recognized that we do not know it all, and opened ourselves to learn, reflect and internalize beyond our comfort zone, the world might start to become a better place.

Whenever a vengeful attack by a group identified as Muslims occurs, the world very quickly reverberates into “Good Muslim v Bad Muslim” echoes; thanks to Dubya Dictionary! Who would have known that a man caricatured as ‘having no brain’ during his presidency, would enrich our international lingua! Talk about satire, right?

Once again, following the recent murders at Charlie Hebdo in Paris, France, we find ourselves profiling those gunmen as bad muslims, terrible, evil, savages, inhuman, terrorists, who hate freedom, and against all the ‘good civilizing western values’. Plenty of columns have been written, arguments advanced, interviews conducted, airtime dedicated on TV, radio, internet, social media, and every news source to interrogate how people can be so evil as to carryout senseless murders!

I am one of those who have visibly extended my allegiance to #JeSuisCharlie, not because I buy into the ‘Good Muslim v Bad Muslim rhetoric, but for what I felt as disproportionate reaction to hurtful, hateful and degrading speech of the pen and ink. I condemn any form of shooting, murder or violent attack on a person, a people or a community. I wondered why, if the gunmen were terribly insulted by the Charlie Hebdo satire, they did not hit back with own satire! On second thought, a part of me realizes that a pen with print-ink can be as hateful as a sword with bullets. Violence begets violence! I recognize as well, that it is easy to apportion blame and responsibility, when it is not you that the world is repeatedly humiliating, making a caricature of, profiling or psycho-analyzing as evil and violent.

Charlie Hebdo Satire about Islam and the Prophet

I am uncomfortable that, once again, in the world habitually bombarded with a smear campaign depicting Islam as a terrorist religion, we are forced to defend the validity or folly of such generalization. Even more troubling is the fact that believers in Islam, Muslims and followers of the Prophet Muhammad (S.A.A.W.S), by their own responses, reactions or actions, have not done a great job defending their faith or fellow believers. Unintentionally, they are aiding the smear campaign against their faith and believers, by self-assigning themselves into the “Good and Bad Muslim” camps. Whereas the #CharlieHebdokillers seemingly validated the claim that muslims are ‘inherently violent’, other muslims who did not agree with the actions of the gunmen are claiming “those are not muslims, do not represent islam nor rightly practice the Islamic religion.”

I wonder who is to say that one is not a muslim or practicing ‘the real’ Islam? Unless one has founded a religion, who has a right to decide that one is more muslim than the other?. You either have to be Prophet Muhammad, Jesus Christ or Kibwetere in southwestern Uganda to exclude another believer from Islam, Christianity or cult worship respectively.

To claim that one is not a muslim because they do not practice religion the way you do, is to pretend that there is uniformity of understanding or in the practice of the faith, and to undermine its diversity of traditions and interpretations. Recall that Islam has many classifications, -Shia, Sunni, Sufism, Ibadi, Ahmadiyya, and many more, with different beliefs, believers, traditions and practices. Nor can Christianity claim uniformity, given its multiplicity of followers -Catholics, Protestants, Lutherans, Latter Day Saints, Methodists, Baptists, Quakers and plenty more!

Why then, should some muslims disown as ‘good believers’, those who in their reading, interpretation and dedication to the religion, seek to avenge what they see as onslaught on that which they hold dear to their livelihood, belonging and community? We may not like or think like others, but we cannot decide who has a claim to social beliefs and belonging. Like Black folks, ’good’ muslims are now buying into the dominant social pressure, distancing themselves from those within their faith, whose actions seemingly do not augur well with the public image they wish to portray of themselves and their religion. Choosing not to [publicly] interrogate this troubling and disproportionate profiling, politicized assault and humiliation of the muslim faith by some muslims and non-muslims.

Going back to “Dubya” once again, his presidency was marred by various scandals at home and abroad, when the “War on terror” turned into the “War of Terror”, with fabricated allegations about WMD in Saddam’s Iraq, assault on civil liberties and freedoms and wire tapping. While many Americans opposed Dubya’s presidency, felt humiliated at home and abroad, distanced themselves from the actions of his government, some moved or threatened to move to Canada, none questioned whether Dubya was an American or suggested he was not an American.

So, why then, should muslims dismiss the “Muslim-ness” of fellow believers they do not agree with? Why do we easily dismiss those we do not agree with as bad, savages or non-believers? Portraying ourselves as against any form of hate, violence and brutality, when among us are people who joyful celebrated the brutal murder of Osama Bin Laden and vengeful humiliation of Saddam and Gaddafi, and endorsed the wars in Afghanistan and Iraq. We look away when drones strike entire villages in Pakistan, but scream at beheading of western nationals because acts of violence are more gruesome and inhumane when carried out by those ‘bad muslims”! Ultimately, the folks who died at #CharlieHebdo love and believe in freedom of expression as much as those who reacted to the misrepresentation and inappropriate satirization of their beliefs. The violent choice of reaction by the gunmen do not make them less or more muslim than Muslims who react with a pen, street protests or passive objection.

Perhaps, the right not be gagged is the most inalienable human right, expressed by every being from the time they are born. Mothers, doctors, courts of law, and the State can all take away the right to be born. Even idiotic militias have been known to prematurely terminate a budding life. According to tales from Uganda’s civil war in the ‘80s, government troops allegedly slit open pregnant women’s tummies, “in search of bombs they were carrying”, not babies, as common reproductive science tells us! Fanatical ‘social moral watchers’, like family members have also brutally ended lives of the unborn, when they have murdered their female relatives. Crime: becoming pregnant before marriage, thus bringing shame onto their family! True story!

Nonetheless, it is near impossible for anyone to deny any person, including a newborn child, the Freedom of Expression. A child starts expressing itself in its mommies tummy with a kick, signaling its presence or turning from side to side. Immediately upon birth, the newbie announces its presence with a cry or scream, which can also imply it is expressing its right to eat, sleep, or pee, to a diaper change or to no more boobie time.

How then can we say that Charlie Hebdo should limit its Freedom of Expression on religious issues? By what magnitude? Under what circumstances? On which specific cases? Or with regard to which person or persons? should CH set limits or censor itself?

Recognizing that Article 19(2) of the 1997 ICCPR – International Convention on Civil and Political Rights explicitly denotes that “..Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Though, theRight to Freedom of Expression has not been without controversy, contestation or control. Even the United States, a society that aggressively defends free speech as legally protected under the First Amendment, has imposed limits where it is has been deemed that unchecked freedom of expression may incite lawlessness, or encourage child pornography or obscenity. Limits on free speech have also been set to regulate undesirable commercial advertising -and here I am thinking of popular disclaimers by liquor companies [Do Not Drink and Drive] or cigarette manufactures [Smoking By Pregnant Women May Result in Fetal Injury]. Of course, we have ‘dumb’ disclaimers like those found on shopping carts, “Do Not Fold Baby in shopping cart….something like that..!

Per, Article 19 of ICCPR, Clause 3 stipulates grounds for limitations on Freedom of Expression to (a) respect the rights or reputations of others, or (b) for the protection of national security or of public order (ordre public), or of public health or morals.

It is here that we are confronted with several questions regarding 1) who is the public? 2) what is national security or public order? 3) what is public health or morals? 4) what is the rights or reputation of others? 5) who’s rights? 6) who is “others”? Should we say that the militant islamists, who shot and killed twelve people at Charlie Hebdo offices, a satirical French newspaper did so to ‘protect the rights or reputations of others’, reportedly, “to avenge the Prophet Muhammed”? After all, they too are entitled to “Freedom of Expression”, including their morals and reputation as members of the French public, right?

Could we justiciably defend their choice of expressing their right? Or are rights that disrupt public order and national security indefensible? The choice for Charlie Hebdo to allegedly harm the reputation of others through satire may as well be seen as indefensible, a cause of discomfort and anger by “The Other” who did not find it funny but offensive. Yet, the choice and course of counter-expression utilized by the gunmen appears more problematic and disproportional. I ask, had they [Avengers of Prophet Muhammad] chose own satire to respond to Charlie Hebdo, would the outcome have been within the provisions of Article 19? Perhaps it could have been deemed less inhumane, or savagery as French President Francois Hollande described it, and not against national security?Perhaps it would be seen as “proportional expression of freedom of speech”, right? Instead of driving and dividing the world further into the anti-islam or anti-muslim backlash, currently spreading like wildfire throughout Europe and the world.

This reminds me of a another controversy concerning media freedom v rights and reputations of others, back in 2014 while living in Senegal. A popular print media published a personal story about President Abdoulaye Wade, then considered by many a scathing attack on “the Person of the President”, before he became the “Benevolent Dictator” that tried to unscrupulously manipulate the country’s long established constitutional rule and perpetuate himself in power. Anyway, I do not quite remember the details of the article, but I listened to a radio interview with one of his supporters, a History Professor at the nation’s largest Université Cheikh Anta Diop. The interviewed asked the professor [I guess also a Presidential Advisor], why they decided to write a response article to the press instead of taking the journalist in question to court. To my recollection, the professor responded that, “If we had chose to go to court, you, the media and the public would have complained that we are infringing on media freedom. So, we decided to respond with the same tool that utilized to attack the president – through the media.” [paraphrased].

How about that for ‘Prophet Muhammad’s Avengers’? After all, Senegal, is also a country with 94% Muslim population, who adore the prophet [S.A. A. W. S] as much as the muslim gunmen at Charlie Hebdo in France. In international relations, Senegal is among a few countries in the world, where a majority religion [Islam] chooses a President from another religion [christianity]; the country’s first Post-colonial President Léopold Sédar Senghor was Roman Catholic, with a white French wife! Senegal also holds a respected place globally, as one of the few long-standing democracies in post-independence Africa, which has never experienced a military coup, with each change of government via electoral democracy. On a personal note, in Senegal Islam is practiced with a human face as a community culture rather than a dogmatic religion. Even non-muslims generally feel comfortable saying As-salamu alaykum, without coercion! It let a great impression on me, relatable to my childhood in Uganda, when my muslim friends always invited me to break the fast with them during Ramadan and celebrate Eid. Just to let you in my “well-kept secret”, I was once engaged [yes, me!] to be married to a Senegalese. Thankfully for me, my Right to Freedom of Speech, allowed me to change my mind, when I expressed my change of plans in writing, without any physical harm to my fiancé or undermining public order. May we never seek to take lose the Freedom of Expression nor deny ourselves the Right to control or alter how we express our discomfort, whenever we disagree with verbal, visual or literal satire. Sometimes, violent and fatal Freedom of Expression may just be Indefensible!